Lunt v. Holland

Of tile construction of grants, as relates to the boundaries of the land granted. [Where a survey is referred to in a deed, the grantor is bound by it Land granted as bounded by a river, extends to the thread of the river. — Ed.]

Trespass quare clausum fregit. Issue was joined on the plain tiff’s seisin, which was tried before Thatcher, J., at the last October term in this county. The plaintiff derived his title from a grant of the commonwealth, in which the premises conveyed are described as “ a certain tract of land lying in the township numbered one, in the county of Cumberland, * which was surveyed and laid out in April, 1789, by Samuel Titcomb, and is bounded as follows, viz., beginning at a hemlock tree standing by the south side of the River Androscoggin, thence south, &.C., to another hemlock tree also standing by said river, thence south-eastwardly and bounding by said river ■ to the first-mentioned bound, said tract containing 4880 acres, more or less.” The locus in quo was an island containing about thirty acres, the river running on each side of it, and lies between the said two hemlock trees, and nearest to the shore of the plaintiff’s said grant. In addition to the deed from the commonwealth, the plaintiff produced the deposition of the said Titcombi with a copy of his survey referred to in the said deed; from which it appeared that he intended to include the island in question, and that he returned the said survey to the commonwealth’s agents, previously to their executing the said deed. The defendant objected to the admission of the deed, deposition, and plan aforesaid, as evidence to prove the soil and freehold of the said island to be in the plaintiff. The judge overruled the objection. The defendant then contended that the tract of land granted to the plaintiff must be limited by the boundaries in the deed, and that by them the island in dispute was necessarily excluded from the land granted ; and that the boundaries, being definite, and fixed by monuments, could not be so extended, by any reference to said plan, as to include the island in the said grant. The judge directed the jury, that, as there was a direct reference in the deed to the survey taken by Titcomb and annexed to his deposition, the island should be considered as within the description of the land in the deed ; and as land granted as bounded by a river is held to extend to the thread or channel of the river, and as here were two channels, it might well be presumed the intent of the parties to the conveyance that the grant was intended to extend to that channel, which would include the island. *A verdict was returned for the plaintiff, subject to the opinion of the whole Court upon the direction of the judge, and the admission of the said deed, deposition, and plan.